"I'm Not a Lawyer"

So says blogger Steve Miller, but that doesn't stop him from touting last week's Blade for its criticism of Log Cabin's legal attack on the military's anti-gay policies. The article dissects the Republican group's federal case, filed last October. In doing so, it relies primarily on quotes from people associated with the Servicemembers Legal Defense Network, which is pursuing its own constitutional challenge to "Don't Ask-Don't Tell".

Amidst allegations of organizational rivalry, the second-guessing seems to boil down to two key points. First, that a lack of named plaintiffs in the Log Cabin suit poses "a major problem" and, second, that the Ninth Circuit -- which will hear any appeal of the case -- has not been friendly to DADT challenges or gay rights generally in the past. Since I've gone on record supporting the LCR strategy in both of these respects, I figure I might as well respond.

• Anonymous Plaintiffs - I'm not convinced that shielding the personal identities of LCR's plaintiffs harms their case that much. Rather, I think it lets LCR present stories of more sympathetic front-line warriors who would not be willing to go public otherwise. (Presumably some of them will actually come forward to testify. If the identity of rape victims can be protected by the courts, why not that of soldiers?)
  
  In contrast, SLDN has named twelve plaintiffs in their suit. Quite frankly, and in all due respect to the service these men and women have given their country, we are not talking about a bunch of infantry grunts here. In fact, only one of them has had any ground combat experience, though now he's a JAG. While two others served on Navy warships, the others are trainees, doctors, a paralegal, an MP and a Coastie. Half are women. This may well reflect the real diversity of modern military life, it is not what the American public thinks of when asked to support homosexuals in the barracks and in the trenches.
  
  Ultimately, I have to applaud the Log Cabin for caring as much about the PR aspects of their case as they do about legal technicalities. (We've seen what comes of judicial decisions that lack vital support from the general public.) When the defense of the nation is at stake, the whining of a bunch of REMFs don't stand a chance. Just maybe, the LCR can prove that gays do contribute in even the toughest of combat -- that they are the equal of straights even at the tip of the sword. That is the sort of message that might make a difference.
• Hostile Judicial Environment - The SLDN supporters also attack LCR for filing in California, because the Ninth Circuit has previously upheld DADT and ruled against gay servicemembers before the policy was established. The theory goes that because there is contrary precedent in the Circuit, "getting a court to reverse its previous ruling will be difficult." This argument has little merit. For one thing, the Blade fails to explain how SLDN, in bringing its case in Boston, has substanitally improved on LCR's strategy. I could surmise that they are not fighting the same weight of anti-gay precedent in the First Circuit. Perhaps SLDN is also taking into account the Ninth's record of being the most overturned by SCOTUS; but Massachusetts is no conservative stronghold. I don't see how a controversial decision coming out of New England is significantly more legitimate among middle Americans.
  
  All of the Ninth Circuit cases in question were decided before the groundbreaking libertarian decision in Lawrence v. Texas -- an example, by the way, of the U.S. Supreme Court reversing itself less than 20 years after Bowers v. Hardwick. (Lawrence, as it happens, was cited U.S. v. Bullock, which struck down the military's sodomy law in a heterosexual case only a few weeks ago.) I think it is a mistake to underestimate the power of the Lawrence decision to reshape the judicial landscape. It didn't merely include homosexual sodomy as a distasteful but permissable act among consenting adults under the right to privacy. It was a high-court affirmation of gays and gay relationships as fundamentally legitimate. (For proof, note the citation to Lawrence in the Massachusetts gay marriage case.)
  
  Since we are at war, it may well be that judges all over the country will be loathe to carry Lawrence to its logical conclusion and throw out DADT. But I hardly think that chosing to bring suit in the most liberal judicial circuit in the country was a tactical error.

I certainly don't fault SLDN for lining up another case against Don't Ask-Don't Tell. As things stand, we now have a two-pronged pincer attack led by top-notch law firms White & Case and Wilmer Cutler Pickering Hale & Dorr. Both organizations deserve credit for pursuing the laudable goal of dismantling an evil policy. It would be nice if they could do their work without the counterproductive in-fighting in the gay press.